FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001
March 11, 2011
SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA) v. DARRELL LAMBERT, Employed by LVI ENVIRONMENTAL, INC. |
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BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act”). On July 8, 2010, the Commission received from Darrell Lambert (“Lambert”) a motion by counsel seeking to reopen a penalty assessment against Lambert under section 110(c) of the Mine Act, 30 U.S.C. § 820(c), that may have become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under the Commission’s Procedural Rules, an individual charged under section 110(c) has 30 days following receipt of the proposed penalty assessment within which to notify the Secretary of Labor that he or she wishes to contest the penalty. 29 C.F.R. § 2700.26. If the individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order of the Commission. 29 C.F.R. § 2700.27.
In his motion, Lambert states that he did not receive MSHA’s proposed penalty assessment, which was sent in October 2009 via Federal Express to the company’s Seattle, Washington address. Lambert explains that he was laid off from his position in February 2009, that the company closed its Seattle office in April 2009, and that Lambert relocated to a new position within the company in New Jersey in July 2009. Lambert states that he informed the U.S. Postal Service of his change of address and had his mail forwarded. He asserts that he discovered the penalty assessed against him on or around June 25, 2010, when he received a letter forwarded by the U.S. Postal Service from the U.S. Department of Treasury informing him of the delinquency. Lambert further states that his counsel obtained a copy of the proposed assessment from MSHA on June 30, 2010 and shortly filed this request to reopen. Lambert asserts that he wishes to contest the penalties proposed against him.
The Secretary states that she does not oppose Lambert’s request to reopen the penalty assessment.
Here, Lambert never received notification of the proposed penalty assessment as required
under Commission Rule 25.
Under the circumstances of this case, we conclude that Lambert
was not notified of the penalty assessment, within the meaning of the Commission’s Procedural
Rules, until at least June 25, 2010, when he received a copy of the assessment from MSHA.
Under the circumstances of this case, we conclude that Lambert timely contested the proposed
penalty, once he had actual notice of the proposed assessment. See John R. Hurley, 31 FMSHRC
1331, 1332 (Dec. 2009); Michael Cline, 31 FMSHRC 354, 355-56 (Mar. 2009); Stech, employed
by Eighty-Four Mining Co., 27 FMSHRC 891, 892 (Dec. 2005) (all concluding that the proposed
assessment was not final because the agent did not properly receive the proposed assessment and
construing the agents’ submission as a timely contest).
Accordingly, the proposed penalty assessment is not a final order of the Commission. We remand this matter to the Chief Administrative Law Judge for assignment to a judge. This case shall proceed pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. Consistent with Rule 28, the Secretary shall file a petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.
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Mary Lu Jordan, Chairman
____________________________________
Michael F. Duffy, Commissioner
____________________________________
Michael G. Young, Commissioner
____________________________________
Robert F. Cohen, Jr., Commissioner
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Patrick K. Nakamura, Commissioner
Distribution:
Laura E. Beverage, Esq.
Jackson Kelly PLLC
1099 18th Street, Suite 2150
Denver, CO 80202
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021